PHILLIPS v JORDAN
Docket No. 216559
Court of Appeals of Michigan
Submitted July 7, 1999. Decided May 9, 2000
241 Mich. App. 17
Gerald D. Lostracco, J.
Leave to appeal sought.
The Court of Appeals held:
1. Contract principles do not govern child custody matters. Although the courts encourage parents to reach agreement regarding child custody matters, courts cannot blindly accept the parents’ stipulations regarding custody and must independently determine what is in the best interests of the child.
2. The court erred in entering the July 1997 stipulated order with-
3. A custody award may be modified on a showing of proper cause or change of circumstances that establishes that the modification is in the best interests of the child. However, where the modification would change a child‘s established environment, the moving party must show by clear and convincing evidence that it is in the child‘s best interest.
4. The court‘s determination that an established custodial environment was with the plaintiff and its findings with regard to the factors for determining the best interests of the child,
5. The court‘s decision to grant a change of domicile was not an abuse of discretion.
Affirmed.
HOLBROOK, JR., P.J., dissenting, stated that a review of the statutory best interest factors is required only where a “child custody dispute” has arisen. Where the parties agree regarding modification of a custody arrangement, a court is authorized, but is not bound, to accept the parties’ stipulation without first specifically reexamining the best interest factors. The court erred in not enforcing the July 1997 stipulated order. The court did not err in disregarding the provision regarding a change of custody if the plaintiff moved from the school district because that provision usurped the court‘s authority to consider the child‘s best interests. The court abused its discretion in granting the petition for change of domicile because the purported potential advantages for the child of the move to California do not outweigh the existing advantages of remaining in Michigan. That part of the order should be reversed. The part of the order regarding a change in custody should be reversed and the matter should be remanded for a reexamination of the custody issue in light of the existence of a joint physical and legal custody relationship.
1. DIVORCE — CHILD CUSTODY — STIPULATED ORDERS.
Stipulated orders entered by a trial court generally are construed under the same rules of construction as contracts; however, contract principles do not govern child custody matters.
2. DIVORCE — CHILD CUSTODY — STIPULATED ORDERS.
Parents are encouraged to work together to reach agreements regarding child custody matters, but the circuit court retains jurisdiction over the child until it reaches the age of majority; the court may
3. DIVORCE — CHILD CUSTODY — MODIFICATION OF ORDERS.
A child custody award may be modified on a showing of proper cause or change of circumstances that establishes that the modification is in the child‘s best interest; however, where a modification of custody would change the established custodial environment of the child, the moving party must show by clear and convincing evidence that it is in the child‘s best interest (
Bailey & Smith, P.C. (by Mark R. Bailey), for the plaintiff.
Thomas J. Dignan, for the defendant.
Before: HOLBROOK, JR., P.J., and ZAHRA and J.W. FITZGERALD*, JJ.
ZAHRA, J. Defendant appeals as of right from an order denying his petition for a change of custody and granting plaintiff‘s petition for a change of domicile. We affirm.
Plaintiff and defendant were divorced in January 1994. The judgment of divorce granted the parties joint legal custody of their two-year-old daughter with physical custody awarded to plaintiff. Following the divorce, plaintiff allowed defendant liberal visitation beyond that ordered by the trial court and often asked the paternal grandmother to baby-sit the child in lieu of a hired baby-sitter. On July 28, 1997, the trial court entered a stipulated order signed by both parties changing custody to joint physical and legal custody. The order also provided that plaintiff would keep the child in the Owosso School District until she*
In April 1998, plaintiff married a man who lives and works in California. In July 1998, plaintiff petitioned the trial court for change of domicile from Michigan to California and requested an assessment of child support. Defendant in turn filed a petition for change of custody and asked the trial court to enforce the July 28, 1997, stipulated order. Plaintiff then petitioned for change of custody and asked the trial court to set aside the stipulated order. At the conclusion of a four-day evidentiary hearing, the trial court set aside the stipulated order, denied defendant‘s petition for change of custody, and granted plaintiff‘s petition for change of domicile.
We apply three standards of review in custody cases. The great weight of the evidence standard applies to all findings of fact. A trial court‘s findings regarding the existence of an established custodial environment and regarding each custody factor should be affirmed unless the evidence clearly preponderates in the opposite direction. Fletcher v Fletcher, 229 Mich App 19, 24; 581 NW2d 11 (1998), citing Fletcher v Fletcher, 447 Mich 871, 877-878; 526 NW2d 889 (1994). An abuse of discretion standard applies to the trial court‘s discretionary rulings such as custody decisions. Id. Questions of law are reviewed for clear legal error. Fletcher, supra, 229 Mich App 24, citing
In Napora v Napora, 159 Mich App 241; 406 NW2d 197 (1986), as in this case, the parties agreed to a change of custody that was later disputed by the custodial parent. The Napora Court held that the trial court erred in believing that it was required to uphold the stipulation of the parties:
Despite any agreement which the parties may reach in regard to the custody of their child, where a custodial environment is found to exist physical custody should not be changed absent clear and convincing evidence that the change is in the best interests of the child. [Id. at 246-247 (citation omitted)].
See also In re Ford Estate, 206 Mich App 705, 708; 522 NW2d 729 (1994), holding, in part, a stipulation between the parties was not binding because “the parties to a civil matter cannot by their mere agreement supersede procedures and conditions set forth in statutes or court rules.” (citation omitted).
In the present case, the trial court entered the stipulated order to change custody without making any independent determination regarding the best interests of the child pursuant to the Child Custody Act. We conclude that the trial court erred in failing to make such a determination.1 As such, the trial court
The Child Custody Act is equitable in nature and, thus, should be liberally construed.
If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
The act does not define “child custody dispute.” Therefore, it is proper to consult dictionary definitions to determine its meaning. Popma v Auto Club Ins Ass‘n, 446 Mich 460, 470; 521 NW2d 831 (1994); Ryant v Cleveland Twp, 239 Mich App 430; 608 NW2d 101 (2000). Dictionary definitions of the term “dispute” include
- to engage in argument or debate. 2. to argue vehemently; quarrel. ... 3. to argue or debate about. 4. to argue against; call in question. 5. to quarrel or fight about; contest. 6. to strive against; oppose ... 7. a debate, controversy, or difference of opinion. 8. a quarrel. [Random House Webster‘s College Dictionary (1997).]
Blacks Law Dictionary (7th ed) defines the term as: “A conflict or controversy, esp. one that has given rise to a particular lawsuit.” Given those definitions and the act‘s purpose of promoting the best interests and welfare of children, Frame, supra at 176, we read the language in § 7 in the greater context of the Child Custody Act to mean any case arising from divorce or otherwise where child custody is at issue. Thus, a child custody dispute, as that term is used in § 7 of the Child Custody Act, is any matter that relates to the custody of a child from the time the issue of custody arises until the child reaches the age of majority. This interpretation is supported by the fact that, from the time a court takes jurisdiction over a child custody dispute, all matters relating to the child‘s welfare and upbringing, such as child support, parenting time, and changes of custody
Defendant next argues that the trial court ignored the great weight of the evidence in failing to grant custody to him. We disagree.2 A custody award may be modified on a showing of proper cause or change of circumstances that establishes that the modification is in the child‘s best interest.
over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [
MCL 722.27(1)(c) ;MSA 25.312(7)(1)(c) .]
The trial court acknowledged that defendant and his family played important roles in the child‘s life, but that, nevertheless, the custodial environment was with plaintiff as opposed to defendant. The trial court noted that this is not a case of plaintiff versus defendant and his mother, Sharon Jordan. In fact, the trial court opined that both plaintiff and defendant would fall short if they had to compete with Sharon Jordan for custody of the child. However, the trial court looked at the factors as they pertained to plaintiff and defendant, not including the extended family.
The evidence revealed that, during defendant‘s parenting time, the child spent the majority of her time at Sharon Jordan‘s house. Even on the weekends when defendant was not working, defendant would spend the day with the child, but the child usually slept at Sharon Jordan‘s house rather than at defend-
The trial court determined that the child had been with plaintiff since birth except for parenting time spent with defendant. The trial court further found that the child looked to plaintiff, as between the parents, for guidance and the other factors listed in
Once it was determined that a custodial environment was established with plaintiff, it was incumbent on defendant to show by clear and convincing evidence that a change in custody was in the child‘s best interests. Rummelt, supra at 494.
The trial court must examine the factors listed in
Defendant alleges that plaintiff failed to provide proper medical care for the child twice in the past. The trial court did not make a specific finding regarding either parent‘s ability to provide medical care; however, in both instances cited by defendant, the facts show that the child received the necessary medical care. On the first occasion, the child was taken to the hospital by defendant‘s mother while she was watching the child, but plaintiff did not go to the hospital to check on the child until the next day. On another occasion, plaintiff had taken the child to the hospital, but the hospital was unable to reach plaintiff regarding follow-up care because plaintiff‘s phone was disconnected and registered letters were allegedly not claimed by plaintiff. Although plaintiff‘s actions in both instances may not have been ideal, that does not prove that plaintiff is incapable of providing adequate medical care for the child. Therefore, we cannot conclude that the trial court‘s findings were against the great weight of the evidence with regard to factor c.
Defendant finally argues that the trial court abused its discretion in granting plaintiff‘s petition for change of domicile because the trial court rejected the testimony of Dr. Zak, the independent psychologist who evaluated the parties and recommended that plaintiff not be allowed to leave the state with the child. We disagree.
A trial court‘s decision to allow a parent to remove a child from the state is reviewed for an abuse of discretion. Overall v Overall, 203 Mich App 450, 458-459; 512 NW2d 851 (1994). An abuse of discretion is found only in extreme cases in which the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992).
This Court, in Overall, reiterated the standard for determining whether a change of domicile should be granted. Overall, supra at 458-459. Four factors must be considered:
“(1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent‘s desire to defeat or frustrate visitation by the non-custodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obli-
gation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.” [Id., quoting Anderson v Anderson, 170 Mich App 305, 309; 427 NW2d 627 (1988).]
With regard to the first factor, the trial court found that plaintiff‘s marriage and move to California had the potential for improving both the child‘s and plaintiff‘s quality of life. The trial court noted that plaintiff‘s husband earned a very respectable living and, judging from his appearance, demeanor, and testimony, he would likely continue to be a success. The trial court also considered plaintiff‘s desire to study the real estate business as a potential improvement to their quality of life. Plaintiff had testified that a career in real estate would allow her to work part-time, so she could fit her schedule around the child‘s school schedule. The trial court stressed that it was not obligated to determine whether, in fact, the quality of life would improve, but instead was required to consider whether it had the potential to improve.
Additionally, we note that the trial court did not reject outright the recommendation of Dr. Zak. Rather, the trial court found that Dr. Zak confused the standard for change of custody with the standard for change of domicile. Dr. Zak opined that it would be in the child‘s best interests to deny the change of domicile, but she did not conclude that it was in the best interests of the child to change custody to defendant. In fact, Dr. Zak‘s recommendation was to have plaintiff‘s husband move to Michigan so that the child could remain in the Owosso community and be raised
The trial court found that the move did have the capacity to improve the quality of life for plaintiff and the child and that extensive summer and holiday visitation would preserve and foster the parental relationship with defendant. The trial court further found, on the basis of plaintiff‘s allowance of liberal visitation in the past, that there was no evidence to suggest that the move was inspired by plaintiff‘s desire to defeat defendant‘s visitation rights or that she would not comply with the trial court‘s order for visitation. Nor did the trial court find that defendant‘s resistance to the move was motivated by a desire to secure a financial advantage.
On the basis of the evidence presented, we cannot conclude that the trial court‘s decision to grant a change of domicile was an abuse of discretion.
Affirmed.
J. W. FITZGERALD, J., concurred.
The majority concludes that because the court originally erred in entering the July 28, 1997, order without first making an independent determination regarding the best interests of the child, it therefore did not err in subsequently setting aside that order. Ante, p 22-24. I disagree. In support of this conclusion, the majority cites my authored opinion in Lombardo v Lombardo, 202 Mich App 151; 507 NW2d 788 (1993). As its author, I believe that the majority has misread that opinion.
In Lombardo, the parents had come to an impasse concerning the proper educational setting for their minor son. The lower court determined that because the defendant father had sole physical custody of the boy, he alone had the authority to decide into what educational program the boy would be enrolled. Id. at 153. We disagreed, concluding that a “court should not relinquish its authority to determine the best interests of the child to the primary physical custodian.” Id. at 160. The case did not involve a stipulated order transferring custody of the boy, nor was there an issue about any stipulation reached between the parties that would limit the court‘s ability to determine the best interests of the child. Further, Lombardo specifically “conclud[ed] that a trial court must determine the best interests of the child in resolving disputes concerning ‘important decisions affecting the welfare of the child’ that arise between joint custodial parents.” Lombardo, supra at 160, quoting
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
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(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 4a, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. [Emphasis added.]
I believe, as did the dissenting judge in Napora, that the plain language of § 7 indicates that the revisiting of the best interest analysis is required only where a “child custody dispute” has arisen. See People v Nimeth, 236 Mich App 616, 620; 601 NW2d 393 (1999). When the parties are in agreement regarding a modification of the custodial arrangement, I believe the
While it is true that a trial court is not bound by the parties’ stipulations or agreements regarding child custody, Napora υ Ναpora, 159 Mich App 241, 245; 406 NW2d 197 (1986), the court is not precluded from accepting the parties’ agreement and including it in the orders of the court. Implicit in the trial court‘s acceptance of the parties’ custody and visitation arrangement is the court‘s determination that the arrangement struck by the parties is in the child‘s best interest.
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... Accordingly, we hold that in cases where the parties are in agreement regarding custody and visitation and present the court with such an agreement, the trial court need not expressly articulate each of the best interest factors.
While the Koron case involved the entry of an original custody agreement and not a modification, I believe the reasons articulated by the Koron Court also support the acceptance of the stipulation in the
Therefore, I believe the court erred in not enforcing the provision in the July 28 order modifying the custody arrangement. I do not, however, believe the court erred in disregarding the provision regarding a change in custody if plaintiff were to “change residence from the Owosso School District . . . .” This provision did have the effect of usurping the court‘s authority to consider the best interests of Jayce when the court was presented with the current custody dispute. See Lombardo, supra at 160.
Accordingly, because the trial court did not begin its analysis of the change of domicile and change of custody petitions with the understanding that the parties had joint legal and physical custody of Jayce, I would remand for reconsideration in light of this custodial arrangement.
As for the issue of the change in domicile, I believe that the court did abuse its discretion in granting plaintiff‘s petition. Overall v Overall, 203 Mich App 450, 458-459; 512 NW2d 851 (1994). As the majority observes, the paternal grandmother‘s involvement in taking care of Jayce during defendant‘s parenting time
The majority correctly notes that under the first prong of the D‘Onofrio test,6 the role of the Jordan “family cannot be the determining factor in denying a change of domicile.” Ante, at 31. However, it is a factor in determining “whether the prospective move has the capacity to improve the quality of life” of Jayce. Anderson v Anderson, 170 Mich App 305, 309; 427 NW2d 627 (1988). See also Scott v Scott, 124 Mich App 448, 452; 335 NW2d 68 (1983) (“The D‘Onofrio test. . . focuses on the best interest of the custodial parent and child.“).
I am not unsympathetic to plaintiff‘s position. She is married to a man who lives in California, and she
Accordingly, I would reverse the grant of the petition for change in domicile. I would also reverse the denial of defendant‘s petition for a change in custody and remand for a reexamination of that issue in light of the existence of a joint physical and legal custodial relationship.
Notes
The dissent focuses on the word “dispute” in § 7 of the Child Custody Act to suggest that the quoted provision applies only where the parties seek specific judicial intervention from the court. We opine that such a narrow reading of § 7 is unwarranted in light of well-settled principles ofThe court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. [Emphasis added.]
The majority notes that my conclusion that a court has the authority, but is not bound, to accept a parental stipulation regarding modification of a custodial arrangement is at odds with the plain meaning of § 7. Ante, n 1, pp 22-23. In support of this assertion, the majority quotes from subsection 7(1)(c). Id. It is a fundamental tenent of statutory construction that every word and every clause of a statute must be read in the context of the entire statute so as to produce an harmonious whole. Weems v Chrysler Corp, 448 Mich 679, 699-700; 533 NW2d 287 (1995); Gumma v D & T Constr Co, 235 Mich App 210, 218; 597 NW2d 207 (1999). Section 7 is divided into six subsections. Each of these six subsections is tied together by § 7‘s introductory clause, which I have already quoted. As this clause indicates, the six judicial responses authorized in subsections 7(1)(a)-(f) arise in the context of a “child custody dispute” that has been submitted to the circuit court. Accordingly, the mandatory limitations placed on the circuit court in subsection 7(1)(c) apply only in the context of a custody dispute. Certainly, if the Legislature had wanted to so circumscribe the circuit court‘s authority to modify a custody arrangement in the absence of parental agreement, it would not have included subsection 7(1)(c) in this list. It is not for the courts to determine that an honorable and broader social purpose could be served if the statute had been designed differently. Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 23. Rather, it is the role of the judiciary to reasonably construe the text of a statute and apply it accordingly. Id.
Additionally, I believe that recognition of a court‘s authority to accept a modification offered by a child‘s parents furthers the laudable goals of minimizing the state‘s role in decisions involving family life and promoting cooperation between divorced parents in matters involving their children.
Let me also make clear that I do not believe a court should blindly accept a parental agreement modifying custodial arrangements. I would not bind the court‘s hands in such a fashion. In the same vein, I do not believe § 7 binds the court‘s hands with respect to a parental agreement to change a custodial arrangement in the absence of a dispute between
Court: And as far as your proposed employment in the event you move to California, you want to get into real estate?
Plaintiff: Yes.
Court: And is that something you‘ve tried here?
Plaintiff: No.
Court: You‘ve not gone to school here?
Plaintiff: No.
Court: You‘ve not gone after any certification or licensure to become a realtor?
Plaintiff: No.
Court: So you don‘t know if you could fare better in Michigan or California selling real estate?
Plaintiff: If I could what?
Court: Fare better in Michigan than in California if you were to sell real estate?
Plaintiff: I guess I don‘t understand what you‘re saying.
Court: Do you know if you could earn more money selling real estate in Michigan than in California?
Plaintiff: I would assume I would earn more in California just because the market is more expensive.
It is also noteworthy that the dissent‘s assertion that “[a]s with judicial acceptance of an original custody arrangement, implicit in a court‘s acceptance of a modification agreement is an acknowledgment that the agreement is in the child‘s best interest“, post at 35, n 2, is particularly inapplicable to the present case. The lower court record suggests the trial court did not consider, either implicitly or explicitly, if the stipulation was in the child‘s best interest before entering its order. The fact that the stipulation was signed on behalf of the trial judge as well as the trial court‘s discussion during the evidentiary hearing regarding the stipulation‘s effect of precluding the court, “potentially forever,” from considering whether it was in the best interest of the child, suggest the stipulation was blindly accepted without any consideration of its effect on the child.
The trial court correctly determined that blind acceptance of the parties’ July 28, 1997, stipulated order changing physical custody, i.e., changing the established custodial environment, was improper absent clear and convincing evidence that it is in the best interest of the child.
the parents. As with judicial acceptance of an original custody arrangement, implicit in a court‘s acceptance of a modification agreement is an acknowledgment that the agreement is in the child‘s best interest.